Alers v. Superior Court of Puerto Rico

83 P.R. 676

• Court: Supreme Court of Puerto Rico
• Decided: October 13, 1961
• Docket: No. 3
• Status: Published

Opinions

Mr. Justice Dávila

delivered the opinion of the Court.

By resolution of January 17, 1957, the Public Service Commission issued to the petitioner herein a certificate of necessity and convenience to operate three omnibuses on the Loiza-Carolina route. On February 8, or 22 days later, “La Cubanita Auto Bus,” which had appeared prior thereto to oppose the granting of the franchise, filed a motion for rehearing. On the following February 18 the petitioner filed a memorandum in opposition to the claims of “La Cubanita.” The Commission set both questions for hearing, and in the meantime it stayed the order of January 17.

Section 75 of the “Puerto Rico Public Service Act” (27 L.P.R.A. § 224) provides a period of 15 days for applying for reconsideration of any finding, determination, or order of the Commission. Relying on this provision of the Act, the petitioner herein raised opposition to the granting of the rehearing requested by “La Cubanita,” alleging that its application was made untimely. The order of the Commission, we have seen, was dated January 17 and the application for rehearing was dated February 8. This notwithstanding, the Commission heard evidence on the opposition by “La Cubani-ta.” The evidence tended to show that the petitioner did not comply with certain laws relating to chauffeurs, and upon deciding the case and setting aside the order of January 17 the Commission stated as follows:

“In view of the circumstances of this case as well as the evidence offered by both parties, the Commission is of the opinion that in disposing of the case it is necessary to consider,, in addition to the existence or nonexistence of public convenience and necessity, the evidence offered by the opposing party on petitioner’s actions in connection with the chauffeurs’ social security laws in force and the mandatory decrees of the Minimum Wage Board. An analysis of the evidence discloses that petitioner’s actions prior to the filing of his application are in. contravention of the provisions of the Chauffeurs’ Social Security Act and mandatory decrees, a legislation having such a high social scope that compliance therewith should not be evaded by any public carrier, since in any grant made by this Commission it is the duty of the grantee not only to comply with our regulations, but also with any other laws enacted by the Commonwealth of Puerto Rico.”

The petitioner appealed to the Superior Court, San Juan Part, seeking review of the Commission’s determinations. The Superior Court affirmed, and thereupon he appealed to this Court by a petition for certiorari, which we issued.

In support of his appeal, he alleges that the motion for rehearing made by “La Cubanita” was untimely filed, and that the Commission could not consider any factors other’ than necessity and convenience in passing upon the request, of the petitioner herein.

Let us first consider the question of belatedness in filing the application for rehearing. Section 75 of the Public Service Act, supra, provides:

“After any finding, determination or order shall have been made by the commission, any public-service company or municipal corporation affected thereby, or any party complainant in the proceedings, or any person, municipal corporation or public-service company, or association duly permitted by the commission, on proper petition and cause shown to intervene may apply, within fifteen days after the service of said order, for a hearing in respect to any matter determined by the commission in or by its hearing or investigation and order issued therein...”

In view of the clear and conclusive terms of the transcribed provision, it is clear that the motion filed by “La Cu-banita” was belated. However, “the commission shall have the power to rescind or modify findings, determinations or orders made under the provisions of this part, upon such notice and in such manner as it shall deem proper, and may grant rehearing for cause shown,” as provided by § 73 (27 L.P.R.A. § 222) of the Act. Relying upon this provision, the Commission could motu proprio hold a rehearing to consider additional questions in connection with the determination it had made of issuing a certificate of necessity and convenience to the petitioner herein.

Such has been the construction placed upon a similar provision in the State of Pennsylvania from which the petitioner himself admits our law was taken. The law of that state, like ours, requires that petitions for reconsideration must be filed within 15 days after service of the order. Section 1006 of the Public Utility Law, Pa. Stat. Ann., Tit. 66, § 1396 (1959). But, as in the case of our § 73, § 1007 of the Act supra (§ 1397 of the Annotated Statutes) provides:

“The Commission may, at any time, after notice and after opportunity to be heard as provided in the case of complaints, rescind or amend any order made by it.”

In the case of Paradise v. Pennsylvania Public Utility Commission, 132 A.2d 754 (Pa. 1957), the court had under consideration a situation similar to that before us. May the Commission hold a rehearing when the petition therefor is filed after the statutory time limit? In passing upon the question, the court stated as follows:

“We agree with appellant that § 1007 does not authorize the Commission to breathe life into a belated petition for rehearing under § 1006. However, the filing of such a petition cannot-limit the Commission’s authority to take independent action under § 1007. The line of demarcation between a rehearing under § 1006 and an independent inquiry by the Commission under § 1007 may frequently be very faint, and we are unwilling to fetter the power of the Commission merely because of unfortunate terminology. The real issue on this appeal is whether the requirements of § 1007 have been observed.”

And what § 1007 does require, as does § 73 of our Act, is that a rehearing be held, and that was what the Commission did here. As in Pennsylvania, the provisions of § 75 of our Act can not limit the Commission’s authority to take action under § 73.

In treating the question of the power of administrative agencies to review at any time their orders and resolutions, support is sought in an article appearing in Wis. L. Rev. 5, at p. 19 (1942) :

“In general the same principles are applied by the public utility commissions. Frequently such commissions enact rules' of practice prescribing a limited period within which an aggrieved party may apply for a rehearing or reopening of the case. Such rules do not limit an otherwise existing continuing jurisdiction of the commission and it may, upon its own motion, reconsider a case even though such period has elapsed.” Schop-fiocher, The Doctrine of Res Judicata in Administrative Law, Wis. L. Rev. 5 (1942).

See, also, Toledo Edison Co. v. Public Utilities Commission, 118 N.E.2d 531 (Ohio 1954); Pittsburgh & L.E.R. Co. v. Public Utilities Commission, 191 N.E. 467 (Ohio (1954), Froeber-Norfleet v. Southern Ry. Co., 9 F. Supp. 409 (D.C.N.D. Ga. 1934).

The Commission had authority to reopen the case for the ■ purpose of considering the question raised before that agency, the fitness of the person to whom a certificate of public convenience was being issued. At this point we stop to consider the other questions raised by the petitioner to the effect that, in granting a certificate of necessity and convenience, the Commission can not take into consideration the character and conduct of the applicant. The petitioner cites authorities in support of his position. Librizzi v. Plunkett, 16 A.2d 280 (N.J. 1940); Bradley v. Arizona Corporation Commission, 141 P.2d 524 (Ariz. 1943); and a Pennsylvania case, Slater v. Penn. Public Utility Comm’n, 98 A.2d 743 (Pa. 1953). In the latter case the grantee had been operating under a certificate issued to a partnership of which he was a partner and which had been dissolved, but continued to comply with the orders and regulations of the Public Service Commission of Pennsylvania. Bearing this in mind, the Commission issued a certificate in his name, and, on appeal, the opposing party alleged that the same should not - have been issued because he had violated the law by continuing to operate under the partnership’s certificate. The Commission was of the opinion that this violation did not warrant the refusal of the certificate applied for because he had always complied with the orders and regulations. The court held that there was nothing to justify the disturbance of the Commission’s findings, and this is what that case actually decides, since its policy was to uphold them unless they were arbitrary and without support in the evidence. And in the instant case the finding was not arbitrary and was supported by the evidence.

Yet, irrespective of the decisions of other jurisdictions in that respect, it seems that the Commission under its power to regulate public transportation not only can, but should, take into consideration the fitness of those seeking to perform a public service regulated by the Commission. Regardless of the necessity for performing a transportation service, it would be inconceivable if the Commission were compelled to issue a certificate of necessity and convenience to an applicant who violates the law. That an agency which regulates the issuance of certificates of necessity and convenience may scrutinize the fitness of an applicant, has been, upheld in the State of Pennsylvania, Byham v. Pennsylvania Public Utility Commission, 67 A.2d 626 (Pa. 1949); D. F. Bast, Inc. v. Pennsylvania Public Utility Comm’n, 138 A.2d. 270 (Pa. 1958); and in other jurisdictions, Cutrona v. Mayor and Council, 124 Atl. 658 (Del. 1924); Alspaugh v. Public Utilities Commission, 65 N.E.2d 263 (Ohio 1946). See, also, 1 Blashfield, Cyclopedia of Automobile Law & Practice § 473 (1948 ed.).

The violations charged to the petitioner herein and found' proved by the Commission bear on the nonpayment of the chauffeurs’ social security and noncompliance with the mandatory decrees of the Minimum Wage Board. But the fact is that it is something more than mere failure to comply with the provisions of certain laws highly characterized by social' justice which directly affect those persons who work for the-holder of a certificate of necessity and convenience. It is the attitude assumed by the petitioner whenever an inspector’ of the bureau charged with the enforcement of one of those¹ laws calls on him for the purpose of investigating the matter. The inspector sees the petitioner and the latter informs him¹ that the omnibuses belong to his brother. The brother then¹ informs him that they belong to the petitioner. It is his attitude in attempting to evade compliance with the law. In this connection, the inspector testified:

“What I want to say to the Commission, as a public officer,, is that Miguel Alers says that he does not own buses, that they belong to Juan, and when I see Juan he says that they do not belong to Juan but to Miguel, and I have been compelled to resort to the courts.”

What guarantee would the Commission have that the petitioner would comply with the orders and regulations of the Commission? Even those which relate to public security. Obviously, the test should not be that the Commission has .authority to exact compliance therewith. Is it by any chance that there are no persons who comply with them willingly? In the performance of public services, preference should always be given to those persons who abide by the law. It is a guaranty for all.

There is no basis to hold that the trial court erred :in upholding the Commission’s finding. Recently, in Public Service Commission v. Metro Taxicabs, Inc., 82 P.R.R. 967 (1961), we said that the function of the court of instance in these cases “is exclusively judicial: to determine whether in the light of the facts and other circumstances present in the certified record to be weighed, the decision of the Commission was or not reasonable, in conformity with the law, and based on competent evidence.” Could it be held that the ■decision of the Commission in the case at bar is not reasonable and that it is not based on competent evidence? And in the Metro case we ratified: “The Court shall not substitute the Commission.” In upholding the judgment of the trial ■court, once again we ratify that criterion.

The errors assigned by the petitioner were not committed. 'The writ issued will be quashed.

Mr. Justice Santana Becerra dissented in a separate ■opinion.

1 Thus, for example, for nonpayment of the inheritance tax, in addition to the specific sanction provided for the particular situation, an administrator is precluded from dividing the property, a judge from approving it, a registrar from recording it, etc. An excellent illustration is given in § 11 of Act No. 130 of 1945 (Sess. Laws, p. 406, 29 L.P.R.A. § 72).